The lawsuit alleged that, in 2009, Aurora withdrew a job offer it had made to Kelly Beckwith ("Beckwith") for a position
as hospice care coordinator upon learning during her pre-employment
medical examination that she has multiple sclerosis (MS). Beckwith
had been diagnosed with MS some years earlier, but had not yet developed
major symptoms. At the time she applied, Beckwith was working as a
nurse and was fully qualified to perform the essential functions of the
job. Aurora attempted to argue that Beckwith did not disclose her MS. The EEOC alleged that Aurora discriminated against Beckwith because of
her disability by misusing confidential medical information to
discriminate against her, and by using a qualification standard that
tends to discriminate against those who are disabled.

Wednesday, July 22, 2015

Eric B. Meyer over at The Employer Handbook is reporting on a bill, called the "Equality Act," which will be introduced by Senator Jeff Merkley (D-OR) and several Senate Democrats as a “wide-ranging sexual orientation and gender identity discrimination
bill.” A companion bill will also arrive in the U.S. House of
Representatives. Included in this wide-range of protections would be protection against discrimination in the workplace. A fact sheet detailing the bill's plans can be found here.

The now-famous Supreme Court case of EEOC vs. Abercrombie & Fitch Stores was recently settled for a mere $45,000. That's right, only $45,000. Abercrombie has agreed to pay Samantha Elauf $25,670.53 in damages and $18,983.03 in court costs. Had Elauf been represented by a private law firm, the attorney's fees would have presumably been astronomical given this case went all the way to the SCOTUS.

Tuesday, July 21, 2015

The Equal Employment Opportunity Commission (EEOC) announced last week that it had reached a settlement agreement with Enterprise Rent-A-Car Company of Los Angeles, LLC, a subsidiary of
Enterprise Holdings, Inc., North America's largest rental car company. Charges made to the EEOC alleged that job applicants over the age of 40
were passed over for hire into management trainee positions at the
company's Burbank, Calif. location between 2008 and 2011 due to their
age. An EEOC investigation determined that ten (10) job applicants over 40
were ultimately denied hire in favor of less qualified, younger
applicants, a violation of the Age Discrimination in Employment Act
(ADEA). Though the local Enterprise company denied any wrongdoing, it has agreed to pay $425,000 to settle the charges and to enter into a 3-year conciliation agreement.

A temporary front line manager at a Federal Aviation Administration
(FAA) facility in Miami, Florida, alleged he was not promoted to the
permanent front line manager position because he was an openly gay man. The FAA never reached a determination on the merits of the claim, and
dismissed the complaint on the grounds it had not been raised in a
timely fashion as required by EEOC regulations. The complainant
subsequently appealed the Agency's decision to the EEOC, which held that the complaint was timely. And while the EEOC also did make a determination on the merits of the claim, they did
conclude that Title VII forbids discrimination based on one's sexual
orientation because it is a form of "sex" discrimination, which is consistent with an internal memorandum that was recently circulated instructing field offices to process and investigate sexual orientation, transgender, and gender identity claims.

In reaching this decision, the EEOC held, "[s]exual orientation discrimination is sex discrimination because
it necessarily entails treating an employee less favorably because of
the employee's sex." In reaching its conclusion, the Commission held
"[d]discrimination on the basis of sexual orientation is premised on
sex-based preferences, assumptions, expectations, stereotypes, or
norms. 'Sexual Orientation' as a concept cannot be defined or
understood without reference to sex," which is language from the landmark Supreme Court case of PriceWaterhouse v. Hopkins, 490 U.S. 228 (1989).

The EEOC also addressed previous court decisions that rejected the argument that Title VII applied to sexual orientation discrimination because Congress, in 1964, did not intend Title VII to apply to sexual orientation and, therefore,
Title VII could not be interpreted to prohibit such discrimination. The EEOC also rejected other court of appeals decisions that relied on
the fact that Congress has debated, but not yet passed, legislation
explicitly providing protections for sexual orientation (referring to the Employment Non-Discrimination Act (ENDA)), holding
instead:

[t]he idea that congressional action is required (and inaction is
therefore instructive in part) rests on the notion that protection
against sexual orientation discrimination under Title VII would create a
new class of covered persons. But analogous case law confirms this is
not true. When courts held that Title VII protected persons who were
discriminated against because of their relationships with persons of
another race, the courts did not thereby create a new protected class of
"people in interracial relationships."

The EEOC referring to associational discrimination. A very interesting decision and it may be nigh time for the U.S. Supreme Court to address the issue if ENDA continues to be shelved in Congress.